Quantifying the beneficial interest: Constructive v resulting trust

Once the Court has found that there is a common intention constructive trust, the Court can find that the parties’ intentions as to quantum can best be discovered by looking at the whole course of dealings between them.

In Drake v Whipp ((1996) 28 H.L.R. 53, CA (Eng)) an unmarried couple bought a barn as their family home. Each contributed financially to the purchase price and to the much larger cost of converting the barn into a home. They also devoted substantial amounts of personal time and labour to the work. Each took care of certain household bills. Title to the property was in the male defendant’s name. It had been found at first instance that there was a common intention that each would have a beneficial interest. The Court of Appeal took the view that this meant that the relationship should be thought of in terms of constructive rather than resulting trust. It held that in this case the beneficial interests should be quantified by looking at the entire course of conduct between the parties. The plaintiff was awarded a one third share (which exceeded what she would have received under a resulting trust approach).

Michael Lower


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